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[Chalice] Criminal. Justice [Chalice]

Presented March 15, 2009, by John Hoover

Opening Words:

It seems most speakers begin with a quote. Today I'm going to open with a quote from my favorite Clint Eastwood movie, and perhaps the greatest western movie ever made. Unforgiven. It's the final scene in the movie:

Clint Eastwood's character has just survived a gunfight in a bar with the town sheriff, Gene Hackman (Little Bill), a man of mixed moral character who ended up killing Clint's (William Muney) best friend (Morgan Freeman) Ned Logan. Having mistaken his for committing the crime which, in fact, Clint himself had perpetrated. Little Bill is lying wounded on the floor, as Muney is reloading his rifle. "I was building a house . . ." he mumbles as Clint looms over him, pointing the load gun at his face. "I don't deserve this"

"Deserves got nothing to do with it" -William Muney AKA Clint Eastwood replies, as he fires the final shot and walks out the door.

The Talk:

When I was first asked to speak here, my mind ran wild with thoughts and ideas of possible topics. Criminal law is the part of our society rarely mentioned, save for the occasional news blurbs, a quick flash of a murderous rampage, a child kidnapper, and the inevitable ultimate conclusion of "put that man away for life" or "he deserves the death penalty." As I thought about this, in preparation for this presentation, I thought of all the controversial issues I could bring up. All the issues I could raise to rile up this otherwise calm collection of people. Should I talk about the "the death penalty, and whether it is right? Or how about making marijuana legal. Perhaps the always-talked about "harsher punishment" for driving while intoxicated. And let us not forget the always popular topic of whether abortion should be legal. But these are the kind of issues talked about all the time. These are the kinds of things, that when asked, most people, if they haven't already thought about them, would be more than willing to form an opinion. These are also the kinds of issues easily resolved in a democratic society. These are the kinds of issues in criminal law that people can understand. These are ideas. Concepts. Legalities. Whatever our result, these things fit nicely into the legal scheme, whichever way we decide. If its illegal, we punish. To talk about any of those issues would be a waste of this fine opportunity. As a criminal defense lawyer, while I have (of course) have issues with particulars parts of the criminal code, and punishment . . .I think most people do.

But this is not what scares me about our criminal justice system. Instead, I want to talk about the criminal process. That is, the process by which someone is arrested, charged, and adjudicated under the criminal code. I will not talk about guilt or innocence. Right or wrong. I am merely going to show you how the criminal justice system works. How people come in and go out. And what mechanisms drive it.

I invite you all to come with me then, on an inside journey through the criminal justice system. A journey through the system as it is for the majority of people subjected to it. My clients.

Lets begin with a simple enough story of events.

Imagine yourself a 20-something male. You live with your girlfriend. You have a less than 1 year old infant. The three of you live together in a small apartment. Only one of you work, its sporadic at best, and given the recent economic downturn, you are feeling the pinch. You average somewhere between 10-18 thousand dollars a year. You and your girlfriend have off tonight. You decide to spend the evening at home, drinking. You have a good time, laughing, joking. The night advances quickly, at soon comes to an end.

You lie down on the floor, vegging out to the television set. At some point you fall asleep. Hours later your young child wakes up. Its crying. You fall back into sleep. The next thing you feel is a kick in the ribs. "Deadbeat father" your girlfriend yells, "get up and take care of your child". She kicks you again. It hurts. It bring you immediately into alertness. You stand up. Angered.You slap her. "don't kick me, I'll take care of the kid." She stares at you, in shock. You walk over and coddle your baby. She storms out of the apartment.

Its later that evening. An hour or two later. You hear a knock at the door. You're hesitant at first. You hear the knock again. "Police" you hear through the barrier. You open the door. In front of you stands two officers, staring you down. Mr. . . ...? they ask, with an inquisitive tone. "Yes, officer, that me" you reply. "We got a report of a fight here earlier. We were told you got into a fight. You know anything about that?

Your nervous. After all, the cops are at your door. He asked you a question . . .do you answer? You don't want to get arrested. The officer looks at you again. "Now, I'm not here to arrest anybody. I'm just here to figure out what happened earlier."

The officer is being nice. He's chatting. So you decide to answer. "Yeah, I was home earlier" You get into a fight? "I wouldn't call it a fight, you reply." Did you hit somebody? "well officer..let me explain" "Go ahead" he says.

And you explain. "there was an argument" She's the one that hit me first. She kicked me while I was sleeping. "Ok, ok" So you keep going, eager to explain yourself. After all, you don't want to be arrested. You finish. The officer, content that you are finished, says "Sir, I'm going to have to ask you to come with me." Your heart races. You are confused. I mean . . .you just told the officer what happened.

Why doesn't he believe you? "I'm gonna have to ask you to turn around please" You hear him getting out the handcuffs. "You have the right to remain silent" he says "you have the right to an attorney" If you can not afford one . . .one will be provided for you"

You feel the cuffs click into place. You feel the officer's hands patting you down. Real panic kicks in now. This is not going as you expected. It still doesn't seem real.

The officer clutches your arm, as he leads you to the patrol car. He helps you into the backseat. The ride seems like an eternity. Your mind continues to race trying to figure a way out of this situation. You don't have any money on you. You haven't been given a chance to contact anyone. Finally, you arrive at the police station. The officer takes you into the booking room. He takes your fingerprints. He tells you he is going to search you. "Tell me now if you have anything I need to know about. He searches you again. He rummages through your clothes, as you stand there. Finally, he takes you to your cell. As you walk towards it, you hear unfamiliar voices. As you reach the barred-door, you get your first glimpse of the concrete cell. Inside you go.

Now the role of the police largely come to end. Now, your case being in the system . . ...the legal process begins.

The police submit a statement if they are requesting a warrant. The Prosecuting attorney files the "information" or complaint against you, based on the information provided by the officers.

Here is where it gets particularly interesting. In order to be released from custody, the "defendant" must post a bond. A bond or "bail" varies in its amount. This amount is based on a number of factors. But most importantly, it is affected most by the offense by which you are charged. The prosecutor knows this. And files the charges with this in mind.

-Lets go back to our example. And the slap. A slap, at its work would be considered assault in the 3rd degree, an A Misdemeanor.

The Prosecutor, seeing this, files the case not just as assault in the 3rd degree. But he tacks on a child endangerment charge: why? Because the bond on a Misdemeanor assault would be a few hundred dollars. Adding a child endangerment charge will likely raise the bond to be closer to 1000 dollars or more. In my experience as an attorney, the more a case is overcharged, the less evidence the State tends to have. The reason for this is obvious. The higher the bond, the more likely the defendant will remain in jail. The longer the defendant remains in jail. The more likely he is to plead guilty to the lesser offense . . .to not fight it.

-There you are. Sitting a cell. Wanting to get out.

Your first court date is set. This is the arraignment date. This is when the judge informs you what you are charged with. This is also when the Judge asks you if you want an attorney. If you say you do, he asks if you can afford one. If you say no, a Public defender application is given to you. You are also given the "opportunity" to talk to the Prosecutor prior to filling out the Public defender application. If the Defendant is lucky. I'm in court that day. Chances are, I won't be. Most people will want the "opportunity" to talk to the Prosecutor.

At this point the PA will give you an offer in the case. "All you have to do is plead guilty to a the assault. A misdemeanor . . .and you'll get probation. They say. You will get out of jail today. If you fight this, and apply for an attorney, you are going to sit in jail, at least for a few more days, if not weeks or months.

Is it worth it? Really worth it, to stay in jail to the day of trial? A trial which is weeks, and likely months away. (In the counties in which I practice, which have one of the fastest rates of arraignment-to trial speed, a misdemeanor will take between 2-5 months. A felony, At least double that. Or you could plead guilty and get out today.

As I'm sure most of you would expect, the majority of the people in the above situation, plead guilty and go on their merry way without ever having an attorney. For the rest, one of two things usually happens. Either they manage to post their bond, or they actually decide to fight the case, and take it to trial. Only 1 in 100 cases actually goes to trial.

If they bond out, and are released, most people will apply for the PD (if they cannot hire an attorney. More than 90% of all criminal cases in Missouri are handled by PDs. So here I come, entering the case. At this point I provide the client with a copy of the evidence against him, and I go over the evidence with him. I explain to him his chances, in my opinion, of prevailing at trial. Honestly though, trial is a last resort, and rarely happens. Now most people would like to believe that the better the case, the better the deal. Or that the less-culpable clients get the best results. Sadly, this is often not the case. Here is the dirty little secret of criminal law. Effort and congestion is what results in better deals. What do I mean by this? Well, let me explain.

The courtroom largely consists of 3 people. The PA who charges the defendant and is seeking conviction, the Judge, and of course, myself, the Public defender, who is representing the defendant. As the criminal law grows each year, the caseload, in turn also grows. Unlike the movies, the majority of cases are not won at trial, with defense using "some legal loophole" to escape culpability. The simple fact is, in a criminal case, the odds are stacked against you. Criminal law is written with the ease of conviction in mind. It is written broadly so as to close legal loopholes. However, what a criminal court is, is busy.

99% of criminal cases do not go to trial. They are resolved much earlier, usually within a few weeks from the charge being brought. A trial takes months, tons of preparation, supoenaing of witnesses, and of course, the attendance of jurors to decide the case.

The simple fact is this. In the majority of the cases, I cannot prevent conviction. What I can do, however, is require the PA to earn that conviction; that is, to work extremely hard to achieve the same result. Given human nature, (and a salaried position) the path of least work is that which is desired. Additionally, the court system is burgeoning with cases.

If an offer in a case is not one which I (or the client likes) I being to file legal motions. Clients have a number of legal rights. I exercise them to the maximum. For example, A client has a right to change of judge or change of venue (in the more rural counties in Missouri . . .its by population). If a client wants to fight a case, the first thing I file is a change of venue. A change of venue changes the location where the court proceedings take place, including the trial. This has significant effect; it changes the jury pool. But it also has a number of lesser realized and (more) powerful effect. It takes the prosecutor out of his "home" turf. The courtroom his is most comfortable with. It also forces the PA to put in significant more effort into the case. Why? They now have to drive to the next county (usually a good 30-50 minutes away) for this *one* case.

The PA doesn't want to expend much effort on a MSD. In fact, A PA doesn't want to expend much effort at all on any of the cases. I mean, that's why the plea agreement/negotiation concept is around. You admit and save the PA effort, he'll cut you a break on the sentence. Well motions equal work. Going to another county equals work. The more work a PA has to do, the more willing they are to negotiate, generally. (Of course, this is also related to the seriousness of the crime). The hidden power of being a PD comes from the fact that I control a majority of the criminal caseload. If all of a sudden, people stop pleading guilty, and start requesting trials en masse . . ..the court system simply cannot handle the load. This is a power which too few dare to exercise. It is this that brings the playing field closer to level.

I'd like to say that the people with the best cases get the best deals. But really, its those that like to fight their cases, those that let me work for them, that get that.

The criminal justice system is not something people want to be a part of. Court is not a pleasant place to be. Most clients want to have their case resolved as soon as possible. They don't want to come back to court. They just want the charge resolved. They want to pay a fine, or get probation. For the majority of the people charged with a crime, this is the result. These people tend to not get the best deals.

I came here today to talk about criminal justice. I wish I could end on that note that most of us wish criminal justice works. I wish that people were found guilty and punished because of what they deserved. Instead, it turns out, that "deserve" has nothing to do with it.

When people ask me "how I can do what I do," It is for this very reason. I have a very particular set of skills. That set of skills, for whatever reason and however it works, is the talent to get individuals out of jail, or out of a criminal charge altogether. Once you realize deserve has nothing to do with it, the answer is simple: I have the ability, with mere words, to get people out of jail, or at the least get their jail time reduced. If they ask me for my help, why would I not give it to them?

© 2009, John Hoover

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article:
Hoover, John. {year}. Criminal. Justice, /talks/20090315.shtml (accessed July 4, 2020).

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